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Canada Rolls Back Refugee Protection: Bill C-31 receives Royal Assent

Canada Rolls Back Refugee Protection: Bill C-31 receives Royal Assent; Canadian Council for Refugees Calls for “Earned Regularization Program” for Refugee Backlog

Adoption of Bill C-31

Yesterday, Bill C-31, the Protecting Canada’s Immigration System Act, received royal assent and became law. The Canadian Council for Refugees (CCR) is concerned about the new law’s grave consequences for the protection of refugee rights in Canada.

“Our fears that this legislation, creating a two-tier system of refugee protection in Canada, would be adopted have now been realized,” said Wanda Yamamoto, CCR President. “Our refugee system needs to ensure a full, fair and independent decision process to decide who is a refugee, based on the facts of their case and regardless of their countries of origin. The new system is vulnerable to political considerations, while the rhetoric about ‘bogus refugees’ in public pronouncements about the bill has been shameful.”

Since Bill C-31 was introduced on February 16, 2012, legal experts and organizations working with refugees from across the country have expressed grave concerns about the proposed changes. These include: tight timelines without adequate time to prepare for the steps in the process; provision for ‘Designated Countries of Origin’; mandatory detention without sufficient independent review for ‘Irregular Arrivals’; and denial of an effective appeal.

“The government’s new law emphasizes speed and categorizations over fairness and individual protection,” said Ms. Yamamoto. “Despite the amendments adopted by Parliament, our concerns about the law’s compliance with the Canadian Charter of Rights and Freedoms and Canada’s obligations under international law are as serious as ever.”

Call for an ‘Earned Regularization Program’

As the new law comes into force, there are over 38,000 refugee claimants still awaiting a decision under the old system. Many of them have been separated from their families for years, unable to get on with rebuilding their lives. No new resources have been allocated within the new refugee system to process their claims.

The CCR therefore calls upon the government to implement an ‘Earned Regularization Program’, which would allow people in the backlog to remain in Canada on the basis of the following humanitarian and compassionate criteria: successful integration; length of time spent in Canada; experiences of rape or torture; experience of domestic violence; statelessness; human rights considerations; or sponsorship by a third-party.
Such programs have been implemented in the past in Canada and elsewhere (most recently in the United States). Ms. Wanda Yamamoto stated “Despite the adoption of the law creating a new refugee system, no new resources have been allocated to deal with the backlog. The CCR hopes that the government will move quickly to allow people in the backlog to get on with their lives.”

Bill C-31, also known as the Protecting Canada’s Immigration System Act, was introduced in parliament on February 16, 2012. It received royal assent on June 28, 2012. Many elements of the bill have raised serious concerns among those who work with refugees and legal experts. These include:

Impossibly Tight Timelines for preparation of refugee hearings and for processing refugee claims. While it is important to ensure a timely hearing, sufficient time to adequately prepare for a process that renders life or death decisions is critical. Refugees who have experienced serious trauma such as war, torture or sexual assault will be particularly vulnerable under the new system. Women making gender-based claims and those making claims on the basis of sexual orientation or gender identity need time to build trust before they can tell their stories. Refugees who cannot have relevant documentation sent to Canada quickly enough to satisfy the new timelines will suffer from not having support for their claims.

‘Designated Countries of Origin’, to be identified at the minister’s discretion, will push people from those countries through the system more quickly than others. In many countries that seem peaceful and ‘safe’, particular minority groups face serious problems of persecution, discrimination and violence, often with the participation of state officials. The elimination of proposed expert oversight mechanism for designating countries, previously accepted by the government, renders Canada’s system of independent decision-making for refugees vulnerable to political, trade, military, diplomatic and other considerations.

‘Irregular Arrivals’ (groups of 2 or more identified at the government’s discretion) will face mandatory detention under the new law. While an amendment will provide for review of detention within 14 days and then after 6 months - instead of after one year as originally proposed - legal experts are still concerned that this will not meet the requirements of the Canadian Charter of Rights and Freedoms. Children will still be detained under the new law despite the fact that detention is not “mandatory” for those 16 and under. Families will face a draconian choice: keep the family together in detention or send their children into foster care.

Barriers to Appeal: The implementation of the Refugee Appeal Division is an important development in Canada’s refugee system, but an appeal will be inaccessible to ‘Irregular Arrivals’ and to refugees from ‘Designated Countries of Origin’. This means that mistakes will go uncorrected, risking the lives of refugees. Irregular Arrivals will not have access to the Refugee Appeal Division, whatever the situation in their country of origin, while refugee claims by people from Designated Countries of Origin are often more complex, making them more vulnerable to mistakes and increasing the need for an effective appeal.

The CCR has maintained that “Bill C-31 must be withdrawn and replaced with legislation which is fair, affordable, and independent, and which complies with the Charter and Canada’s international obligations.”

Backgrounder – Earned Regularization Program

On June 28, 2012, the CCR called on the Minister of Citizenship and Immigration to introduce an ‘Earned Regularization Program’ to deal with the backlog of some 38,000 refugee claims accumulated under the former refugee determination system. In 2009, the Auditor General of Canada attributed the growth of the backlog to a high vacancy rate at the Immigration and Refugee Board.

Earned Regularization Programs have previous been implemented by Canada and other countries to deal with immigration and refugee backlogs. The program called for by the CCR would take into consideration the following criteria for humanitarian and compassionate (H&C) consideration:

Successful integration: Integration would be reviewed taking into consideration not only economic integration, but also factors such as social, cultural and familial integration (i.e. links with the communities in which people without status live, learn, work and worship).

Length of time in Canada: Length of time in Canada is a factor in favour of granting regularization. Those who have been continuously in Canada for three years should normally be landed. However, the fact that a person has not been long in Canada should not be an argument against landing when there are any other H&C factors.

Survival of rape and torture: Persons who have survived rape or torture should normally be granted H&C to avoid return to the country of their traumatization.

Domestic violence: Persons who have left a relationship with a sponsor because of domestic violence should normally be granted H&C.

Statelessness: The fact that a person is de jure or de facto stateless should in itself be a deciding factor in favour of H&C.

Rights of the individual: All applications should be reviewed against the background of Canada’s international instruments and Charter obligations in order to protect the economic, social, cultural, civil and political rights of the individual.

Third-party sponsorship: the presence of a sponsor – e.g. an employer, a labour union, faith group, community or non-governmental organization - that would be able to both vouch for the applicant, as well as support their continued integration in Canada. Immediate and extended family members could be potential sponsors.

CCR President Wanda Yamamoto urged Immigration Minister Jason Kenney “to move forward quickly” with an Earned Regularization Program to allow people in the backlog to get on with rebuilding their lives.